Federal Jurisdiction: Thrust and Parry

Abstract:

In this article, Professor Baker analogizes a litigator’s task in understanding federal jurisdiction to a fencing match because of the special art and form required for both activities. Because federal courts are courts of limited jurisdiction, a case must pass two tests before a federal court may hear the case. First, the case must fall within the scope of Article III of the Constitution, the case and controversy requirement. Second, the case must fall within the scope of some particular jurisdiction enabling act of Congress. If the case fails either test, the federal court does not have jurisdiction. The presumption is against federal jurisdiction, and the party invoking federal power must rebut that presumption. In the article, Professor Baker focuses on the “thrusts” and “parries” involved in answering two questions: does the federal court have the power to hear the case, and should the court exercise that power. The “thrusts” are arguments against federal jurisdiction, and the “parries” are the responses to those arguments. The “parries” contend that the federal court does have the power to hear the case, and that the court should exercise that power. Professor Baker concludes by noting that federal jurisdiction is complicated, sophisticated, and theoretical. Baker challenges the litigator to be equal to the challenge, and to strive for mastery.